Sandy,I agree that here can be disagreement about provisions. Just what is covered by free speech? what is commerce? incorporation doctrine? what is necessary and proper? etc... that's fine. there really is no room for debate on capital punishment, unless, as you stated, one openly admits that they are ignoring the text and deciding based on their own admittedly extratextual standards that only they know and that have no basis whatsoever in the text that was ratified by the people.If you acceot that as a legitimate technique, then the Constitution becomes meaningless and you have judges deciding cases based on what they think the law should be, not what it is. You may be ok with tis with guys like Brennan that agree with you, but I don't think you;d be too happy if Clarence Thomas or Nino Scalia started deciding establishment clause cases or abortion cases based on their evolving standards.
And Brennan and Marshall DID openly admit that they were flouting the text and going with their own views. Marshall said in a speech in Philly that he could care less what the text says because no black people voted for it and because it was written by a bunch of racist, sexist slaveowners.
See:I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago
The 5th AMendment specifically contemplates capital punishment. It would make no sense to include capital punishment if it was banned by the 8th amednment. Capital punishment was well practiced in colonial and early US history. To think that the framers banned it is an activism of the highest order.
And Brennan and Marshall DID openly admit that they were flouting the text and going with their own views. Marshall said in a speech in Philly that he could care less what the text says because no black people voted for it and because it was written by a bunch of racist, sexist slaveowners.
See:I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago
The 5th AMendment specifically contemplates capital punishment. It would make no sense to include capital punishment if it was banned by the 8th amednment. Capital punishment was well practiced in colonial and early US history. To think that the framers banned it is an activism of the highest order.
posted by SarahWeddington | 9:59 PM
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